Munstermann v. Alegent Health-Immanuel Med.

716 N.W.2d 73

271 Neb. 834

Carol K. MUNSTERMANN, Personal Representative of the Estate of Jodi Sue ROWE, Deceased, appellee, v. ALEGENT HEALTH-IMMANUEL MEDICAL CENTER, a not-for-profit corporation, and Hudson Hsieh, M.D., appellants.

No. S-04-1312.

Supreme Court of Nebraska.

June 23, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

P. Shawn McCann, Joseph S. Daly, and Mary M. Schott, of Sodoro, Daly & Sodoro, P.C., for appellants.

William T. Ginsburg, for appellee.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and HANNON, Judge, Retired.

GERRARD, J.

Marty Nuzum murdered his estranged girl friend, Jodi Sue Rowe, on February 12, 2002. The question presented in this appeal is whether Nuzum communicated a serious threat of physical violence against Rowe to the defendants, Nuzum's treating psychiatrist and health care facility, such that the defendants were under a duty to take reasonable precautions to prevent the murder. The jury in this case was unable to reach a verdict, and the district court declared a mistrial. The defendants appeal from the judgment of the district court denying their motion for judgment notwithstanding the verdict. We affirm the district court's denial of the defendants' motion for judgment notwithstanding the verdict, and remand the cause for a new trial.

BACKGROUND

PROCEDURAL HISTORY

This is an action for wrongful death brought by Carol K. Munstermann, personal representative of Rowe's estate, against Alegent Health-Immanuel Medical Center (Alegent) and Hudson Hsieh, M.D., Nuzum's treating psychiatrist at Alegent, for their alleged failure to protect or warn Rowe.

The matter went to trial, after which the defendants made a motion for directed verdict, arguing, inter alia, that there was insufficient evidence that Nuzum communicated a serious threat of physical violence against Rowe to the defendants to give rise to a duty to protect or warn Rowe. The motion was denied, and the matter was submitted to the jury, but the jury was unable to reach a verdict. A mistrial was declared, and the defendants moved for a judgment notwithstanding the verdict, which was denied. See Neb.Rev. Stat. § 25-1315.02 (Cum.Supp.2004). This appeal followed. See Neb.Rev.Stat. § 25-1315.03 (Reissue 1995).

TRIAL EVIDENCE

Nuzum was admitted to inpatient care at Alegent on February 4, 2002, when he checked himself in, suffering from depression and suicidal ideations. Nuzum was treated by Hsieh. Nuzum had been treated as an inpatient at Alegent in January 2002, following a suicide attempt. Nuzum had attempted suicide in 1990, 2000, and 2002.

When Nuzum was admitted in January 2002, he was not found to exhibit any homicidal tendencies. Nuzum was examined and observed for homicidal risk factors during his week as an inpatient, and none were found. When Nuzum checked himself back in on February 4, he again denied having homicidal ideations or assaultive behavior.

Nuzum was seen by Hsieh on February 5, 2002, with several medical students present, and one of those students, Rebecca Gurney (who is now a medical doctor), transcribed notes for Hsieh. Because those notes are central to the plaintiff's case, they are set forth below in their entirety.

2/5/02

M3 transcribing for Dr. Hsieh

Pt was last here 1 mo ago. Pt was to follow up with therapist and take medications. Pt was working, did Ø see therapist. Pt was taking meds. Pt is having problems with girlfriend — she doesn't understand depression. He has been calling into work, doesn't want to get out of bed.

Pt has had suicidal thoughts. He wants to sleep all time, stop thinking.

Thought he would come here before he hurt himself.

Pt was thinking of hurting girlfriend also since she is hurting him. Girlfriend doesn't want to talk about his depression. She won't participate here.

Pt is on Remeron (15 mg) now. Makes him sleep.

Pt doesn't trust himself.

Increase Remeron dose.

[Signed] R. Gurney [M3]

Nuzum was discharged from Alegent on February 7, 2002. His discharge summary indicated that he had recovered from this instance of severe depression and that his suicidal ideations had subsided. Nuzum had been consistently assessed during his stay for homicidal risk factors, and none were present. Nuzum was prescribed medications, instructed on how to follow up with individual psychotherapy, and encouraged to attend community support.

On February 12, 2002, Nuzum murdered Rowe after she came to his apartment to retrieve a set of car keys. Neither Hsieh nor any employee of Alegent acted to warn Rowe or law enforcement that Nuzum might be dangerous.

The primary issue at trial was how to interpret the indication in Gurney's February 5, 2002, notes that Nuzum "was thinking of hurting girlfriend also since she is hurting him." Gurney testified that she never thought that Nuzum was a threat to Rowe. Gurney said that Nuzum had been consistently worried about losing Rowe, because he thought Rowe would leave him because of his depression. Gurney testified that after Nuzum said he was thinking of hurting Rowe, the medical students and Hsieh went into more detail with Nuzum to find out what he meant by the remark. Gurney recalled that Nuzum was asked why he would want to do that; what he meant by it, and [Nuzum] kind of said that he was saddened and frustrated that his girlfriend was not more supportive of him while he was depressed. Kind of wanted him to snap out of it, just be happy, and that really made him feel bad. And because of that, [Nuzum] wanted her to feel the same pain that he was feeling.

Gurney said that when she wrote that Nuzum was thinking of hurting Rowe, it indicated "an emotional hurt." Gurney later explained that her notes were only intended to transcribe "kind of the general gist of the whole thing," not "specifically writing out every little thing that they said."

Hsieh similarly testified that Gurney's February 5, 2002, notes were not a verbatim account of what happened, but were an accurate transcription. Hsieh explained that Nuzum's statement that he was "thinking of hurting girlfriend" was actually in response to direct questioning from Hsieh.

[W]e also talk about—well, now, would it hurt when you injure yourself, and we talk about that he has overdosed on the antifreeze two years before, a month ago. Why would you do that? That was my question. And what were you thinking about when you were injecting the—ingesting the antifreeze? And that's when he said I was thinking about hurting her because she hurt me so much.

Hsieh further explained that this was a common question asked of a suicidal patient—what the patient was thinking when making a suicide attempt. According to Hsieh, Nuzum said that Rowe had hurt him, "[s]o when he took an overdose, it's a way to say—see what you are doing to me? You're hurting me." Hsieh explained that when Nuzum said Rowe was hurting him, Nuzum meant that she had hurt him in an emotional way,

[a]nd so this is how [Nuzum] presented to let her know and get back at her by his taking an overdose. And we did also talk about it on different occasions. And not why would anybody go that far to do it, and his response was it worked. Every time he attempted suicide, she came back to him.

Hsieh agreed that Nuzum was emotionally hurt and that Nuzum thought by attempting suicide, he would hurt Rowe too.

Hsieh agreed with Gurney's explanation of what was meant by her February 5, 2002, notes. Although the word "emotional" did not appear in the notes, Hsieh testified he did not believe it was necessary at the time, "[b]ecause [of] the way the conversation flew, and basically [it was] very, very clear that that's what he meant. That's what he meant emotionally. He wanted to get back at her."

However, the plaintiff's expert witness, Charles Wadle, M.D., testified that in his opinion, Nuzum's suicidal ideations had become more lethal and his hospitalizations had gotten closer together, and this reflected a deterioration in Nuzum's condition. Wadle stated that prior to the February 5, 2002, notes, Nuzum had always talked about hurting himself, which he characterized in the context of suicidal behavior, or self-harm. Wadle testified with reference to the February 5 notes that "here [Nuzum's] referencing hurting the girlfriend, which could very likely indicate harming her physically." Wadle conceded, however, that the records contained no other reference to hurting Rowe, or anyone other than Nuzum.

Wadle found no reference in the medical record to Nuzum's attempting to emotionally hurt his girl friend, stating that the notes were "[t]otally void of any documentation of a subsequent conversation to define hurt." Wadle opined that if such a conversation had occurred, it should have been included in the medical records. When asked on cross-examination if Gurney and Hsieh were credible in their testimony regarding the February 5, 2002, notes, Wadle stated that

[t]heir recollection of such as they have indicated in the deposition is an index of suspicion when they believe it was necessary to go back and qualify the meaning of hurting in an individual who has always used [the] word to imply physical. They went back, asked him, did not document, despite three opportunities, maybe even four, in this medical record. And months to years later, they recall having done that. I don't know if they lied. I don't know if they were just flagrantly aloof when they did this record, but it's not documented in real time for anybody to know what transpired.

Wadle also testified that had the defendants followed what Wadle thought to be the relevant standard of care, a "support system" would have been in place for Nuzum following his discharge and Alegent personnel would have checked with Nuzum to make sure he followed the conditions under which he was discharged. Wadle also testified that the defendants had a "duty to warn" and opined over objection that had Rowe "been...